Bennett v. Colvin

Filing 24

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the final decision of the Commissioner denying Social Security benefits to Plaintiff is AFFIRMED. A separate judgment in accordance with this Memorandum and Order is entered this date.Signed by Magistrate Judge Patricia L. Cohen on May 31, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
TIMOTHY A. BENNETT,

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Plaintiff,
vs.
NANCY A. BERRYHILL,1

Acting Commissioner of Social Security,
Defendant.

Case No. 2:16CV12 PLC

MEMORANDUM AND ORDER
Plaintiff Timothy Bennett seeks review of the decision of the Social Security
Commissioner, Nancy Berryhill, denying his applications for Supplemental Security Income and
disabled widower’s benefits under the Social Security Act. 2 Because the Court finds substantial
evidence supports the decision to deny benefits, the Court affirms the denial of Plaintiff’s
applications.
I.

Background and Procedural History
In October 2012, Plaintiff filed applications for Supplemental Security Income and

widower’s insurance benefits alleging he was disabled as of July 1, 1996 as a result of:
degenerative disc disease; “left shoulder injury with limited range of motion”; “undiagnosed
pulmonary problems”; anxiety; depression; chronic pain; infection in teeth and gums; and acid
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
2
The parties consented to the exercise of authority by the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (ECF No. 9).
1

reflux. (Tr. 72, 166-71, 172-73, 174-80). The Social Security Administration (SSA) denied
Plaintiff’s claims, and he filed a timely request for a hearing before an administrative law judge
(ALJ). (Tr. 107-11, 114-18, 121-22).
The SSA granted Plaintiff’s request for review, and an ALJ conducted a hearing on July
31, 2014. (Tr. 31-70). At the hearing, Plaintiff testified that he was fifty-two years of age, had a
ninth grade education, and had neither a GED nor vocational training. (Tr. 37, 40). Plaintiff had
sole custody of his nine-year-old daughter. (Tr. 38, 55).
Plaintiff stated that his shortness of breath and back pain prevented him from working.
(Tr. 40). He last worked as a painter in the late 1990’s, but stopped after he fell “and broke the
ball off my shoulder and my arm was froze[n] for a couple of years there because I couldn’t
move my arm. . . . and then my wife became ill, I had to – to stay and take care of her until she
passed.” (Tr. 41). Plaintiff did not resume work after his wife died in October 2000 because he
“was in a bad depression there for a while and then I ended up getting married again and I was
living off what was left of the life insurance and my…my back was really bothering me and my
shoulder.” (Id.).
Plaintiff testified that, on a typical day, he helped his daughter get ready for school. (Tr.
42). After she boarded the school bus, he took his medicine and tried “to keep the…place tidy as
I can.” (Tr. 42). He met his daughter’s teachers at the beginning of the school year and if she
“has something at the school I go up to it.” (Tr. 43). He stated that he “sometimes” watched
television and “can barely read.” (Id.). When the ALJ asked what he and his daughter “like to
do together,” Plaintiff answered that she “likes to…read to me” and they played board games and
went to the park. (Tr. 44).

2

Plaintiff stated he was able to dress and shower by himself. (Tr. 45). He prepared mostly
microwaveable food and swept the floors. (Tr. 45, 47). He drove his car to the grocery store
about twice a month and shopped for thirty minutes to an hour. (Tr. 45-46). Plaintiff usually
used disposable plates and plasticware because he “can’t stand that long” and clean dishes. (Tr.
46). Plaintiff’s brother took care of his yard and picked up his and his daughter’s laundry once a
week. (Tr. 46-47). Plaintiff had not smoked cigarettes “in over two months.” (Tr. 47). Prior to
quitting, he was smoking about half a pack of cigarettes per day. (Tr. 48).
Plaintiff took Xanax, Percocet, and heart burn medication, and he used inhalers. (Tr. 48).
Plaintiff believed his medications “help some of the pain,” but they also “make me drowsy.”
(Tr. 48). Plaintiff stated that he had suffered “problems with my back for 15-20 years but it just
got worse” in the last five or six years. (Tr. 49-50). When the ALJ questioned Plaintiff about
injections for back pain, Plaintiff explained, “My doctor is 84 years old and he’s not, you know,
he’s – I just go in there. He does my blood pressure. He gives my [sic] medicine and he sends
me out.” (Tr. 50). According to Plaintiff, he had not changed doctors because he “tried and
nobody wants to take Medicaid[.]” (Id.). The only restriction placed upon him by his doctor was
that he “not [] pick up anything heavy. . . . I think less than 25 pounds or whatever.” (Tr. 52).
Plaintiff stated that, for the last few months, his leg was “going numb from my knee
down to my foot” and the problem was “getting worse and worse.” (Tr. 52). Plaintiff stated that
he could sit or stand for twenty to thirty minutes at a time and “can’t lift much at all.” (Tr. 5354). Plaintiff was not seeing a mental health professional, but took Xanax, which “helps calm
down this – the bolts that I get.” (Tr. 53).
When Plaintiff’s counsel asked him whether he had been diagnosed with lung cancer,
Plaintiff recounted a visit to the hospital during which a doctor informed him that “both of my

3

lungs were spotted” and scheduled surgery, which he refused to undergo. (Tr. 56). Plaintiff
explained, “I watched my family members, my uncles, my dad all die of cancer” and he believed
that surgery hastened their deaths. (Id.). Plaintiff had difficulty breathing when walking short
distances. (Tr. 57). When his counsel inquired about his left shoulder, he stated “I can’t reach it
above my head[.]” (Tr. 58). Plaintiff testified that his pain interfered with his sleep and he
generally slept about three hours per night. (Tr. 60).
A vocational expert also testified at the hearing. (Tr. 62-70). The ALJ asked the
vocational expert to consider a hypothetical individual with the same age and education as
Plaintiff and the ability to perform light work with the following limitations: occasionally climb
ramps and stairs; never climb ladders, ropes, or scaffolds; frequently balance, stoop, kneel,
crouch, and crawl; occasionally reach with the left upper extremity; avoid concentrated exposure
to extreme heat, extreme cold, vibrations, and hazards such as dangerous machinery and
unprotected heights; occasional exposure to respiratory irritant. (Tr. 62-63). The ALJ added that
the hypothetical individual “is able to understand, remember and carry out simple instructions
consistent with unskilled work involving tasks that can be demonstrated and do not require
reading and writing to perform.” (Tr. 63).

The vocational expert testified that such person

could perform the jobs of assembler/small products II, garment sorter, and folding machine
operator. (Tr. 64).
When the ALJ added to the hypothetical the limitations to “unskilled work in which there
are no strict production quotas. . . . In other words, work by the shift and not by the hour,” the
vocational expert stated this would eliminate the bench assembler position. (Tr. 65). However,

4

the vocational expert testified that the hypothetical individual could perform the job of
photocopying machine operator.3 (Tr. 66).
In a decision dated August 21, 2014, the ALJ applied the five-step evaluation process set
forth in 20 C.F.R. §§ 404.1520, 416.9204 and found that Plaintiff “has not been under a
disability, as defined in the Social Security Act, from July 1, 1996, through the date of this
decision[.]” (Tr. 16-26). The ALJ found that Plaintiff had the following “severe combination of
impairments: chronic obstructive pulmonary disease (COPD); thoracic spondylosis; depressive
disorder, NOS; anxiety; and an unspecified learning disorder.” (Tr. 16).
After reviewing Plaintiff’s testimony and medical records and finding that Plaintiff was
“not entirely credible,” the ALJ determined that Plaintiff had the residual functional capacity
(RFC) to:
perform light work as defined in 20 CFR 404.1567 and 416.967(b) except that
he can only occasionally climb ramps and stairs, but never climb ladders,
ropes, and scaffolds; frequently balance, stoop, kneel, crouch, and crawl; is
limited to occasional reaching overhead, in front, and laterally, with the left
upper extremity; must avoid concentrated exposure to extreme heat, extreme
cold, vibration, and hazards such as dangerous machinery and unprotected
heights; is limited to no more than occasional exposure to respiratory irritants
such as fumes, odors, dust, gases, and poor ventilation; is able to understand,
remember, and carry out simple instructions consistent with unskilled work,
where there are no strict production quotas and the individual wouldn’t be
subject to the demands of fast-paced production work, i.e., work by the shift,
not by the hour.
3

The vocational expert testified that there were approximately 50,000 photocopying-machine
operator positions in the national economy and 1,000 in Missouri. (Tr. 66). In regard to the
other positions, he stated there were approximately 27,500 garment sorter positions in the
national economy and 715 in Missouri, and 75,500 garment sorter positions in the national
economy and 1,510 in Missouri. (Tr. 64).
4
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. Those steps require a claimant to
show that he or she: (1) is not engaged in substantial gainful activity; (2) has a severe
impairment or combination of impairments which significantly limits his or her physical or
mental ability to do basic work activities or (3) has an impairment which meets or exceeds one of
the impairments listed in 20 C.F.R., Subpart P, Appendix 1; (4) is unable to return to his or her
past relevant work; and (5) the impairments prevent him or her from doing any other work. Id.
5

(Tr. 20). Finally, the ALJ found that Plaintiff had no past relevant work but that there were “jobs
that exist in significant numbers in the national economy that the claimant can perform.” (Tr.
25-26).
Plaintiff filed a request for review of the ALJ’s decision with the SSA Appeals Council,
which denied review on January 5, 2016. (Tr. 1-4). Plaintiff has exhausted all administrative
remedies, and the ALJ’s decision stands as the SSA’s final decision. Sims v. Apfel, 530 U.S.
103, 106-07 (2000).
II.

Standard of Review
A court must affirm an ALJ’s decision if it is supported by substantial evidence. 42

U.S.C. § 405(g). “Substantial evidence ‘is less than a preponderance, but enough so that a
reasonable mind might find it adequate to support the conclusion.’” Cruze v. Chater, 85 F.3d
1320, 1323 (8th Cir. 1996) (quoting Boerst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). In
determining whether the evidence is substantial, a court considers evidence that both supports
and detracts from the Commissioner’s decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th
Cir. 2009). However, a court “do[es] not reweigh the evidence presented to the ALJ and [it]
defer[s] to the ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reason and substantial evidence.” Renstrue v. Astrue, 680
F.3d 1057, 1064 (8th Cir. 2012) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006)).
“If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The Eighth Circuit has repeatedly held that
6

a court should “defer heavily to the findings and conclusions” of the Social Security
Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255
F.3d 577, 581 (8th Cir. 2001).
III.

Discussion

Plaintiff claims that substantial evidence did not support the ALJ’s finding that he was not
disabled because: (1) the vocational expert did not identify jobs that Plaintiff was capable of
performing; and (2) the ALJ improperly assigned greater weight to the opinion of the state
agency medical consultant than those of an examining physician and treating specialist.
Defendant counters that:

(1) the vocational expert’s testimony was consistent with the

Dictionary of Occupational Titles (DOT) and Plaintiff’s RFC; and (2) the ALJ properly weighed
the medical opinion evidence.
A. Vocational expert testimony
Plaintiff argues that the vocational expert’s testimony did not support the ALJ’s finding
at step five of the sequential analysis that Plaintiff was capable of performing a significant
number of jobs in the national economy. (ECF No. 18 at 9-11). More specifically, Plaintiff
contends that a person with the limitations included in his RFC could not perform the
occupations identified by the vocational expert because, according to the DOT, those jobs
require Level 2 reasoning. In response, Defendant contends that the RFC did not limit Plaintiff
to Level 1 reasoning jobs and there is no conflict between the limitations set forth in the
hypothetical and the requirements of Level 2 reasoning. (ECF No. 23 at 4-7).
At step five of the sequential analysis, the burden shifts to the Commissioner to establish
that the plaintiff maintains the RFC to perform a significant number of jobs in the national
economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). See also Singh v. Apfel, 222 F.3d

7

448, 451 (8th Cir. 2000). The Commissioner may satisfy her burden by eliciting testimony by a
vocational expert based upon hypothetical questions that “‘set forth impairments supported by
substantial evidence on the record and accepted as true and capture the concrete consequences of
those impairments.’” Jones v. Astrue, 619 F.3d 963, 971-72 (8th Cir. 2010) (quoting Hiller v.
Soc. Security ., 486 F.3d 359, 365 (8th Cir. 2007)). “If there is an ‘apparent unresolved conflict’
between VE testimony and the DOT, the ALJ must ‘elicit a reasonable explanation for the
conflict’ and ‘resolve the conflict by determining if the explanation given [by the expert]
provides a basis for relying on the [VE] testimony rather than the DOT information.” Moore v.
Colvin, 769 F.3d 987, 989-90 (8th Cir. 2014) (quoting SSR 00-4p, 2000 WL 1898704, at *2-4
(Dec. 4, 2000)).
At the hearing, the ALJ presented to the vocational expert a hypothetical individual “able
to understand, remember, and carry out simple instructions consistent with unskilled work in
occupations where there are no strict production quotas and the individual would [not] be subject
to the demands of fast[-]pace production work.” (Tr. 65). The ALJ testified that such an
individual could perform the jobs of garment sorter, folding machine operator, and photocopying
machine operator. (Tr. 64, 66). The ALJ relied upon the vocational expert’s testimony at step
five of the sequential analysis when she found that Plaintiff was “capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.” (Tr. 26).
According to the DOT, the three jobs identified by the vocational expert require Level 2
reasoning, or the ability to “[a]pply commensense understanding to carry out detailed but
uninvolved written or oral instructions.” DOT 222.687-014 (garment sorter); DOT 208.685-014
(folding-machine operator); DOT 207.685-014 (photocopying-machine operator).

See also

Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010). Plaintiff maintains that there is a conflict

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between the requirements of Level 2 reasoning and the limitations contained in the ALJ’s
hypothetical – namely, an ability to “understand, remember, and carry out simple instructions.”
In Moore v. Astrue, the Eighth Circuit considered an almost identical issue and held that
there was “no direct conflict between ‘carrying out simple job instructions’ for ‘simple, routine
and repetitive work activity,’ as in the hypothetical, and the vocational expert’s identification of
occupations involving instructions that, while potentially detailed, are not complicated or
intricate.” 623 F.3d at 604. The court further noted that “the Level 2 reasoning definition is an
upper limit across all jobs in the occupational category, not a requirement of every job within the
category.” Id. “In other words, not all of the jobs in every category have requirements identical
to or as rigorous as those listed in the DOT.” Id. (quoting Wheeler v. Apfel, 224 F.3d 891, 897
(8th Cir. 2000)). The court concluded: “Because substantial evidence supports the ALJ’s
phrasing of the hypothetical to the vocational expert, and there was no conflict between the
vocational expert’s testimony and the DOT, the ALJ properly relied on the testimony.” Id.
(citing Page v Astrue, 484 F.3d 1040, 1045 (8th Cir. 2007)). See also Fleming v. Colvin, Case
No. 4:15CV1150 SPM, 2016 WL 4493683, *10 (E.D.Mo. Aug. 26, 2016).
Here, the restriction in the hypothetical (“understand, remember, and carry out simple
instructions”) is nearly identical to the restriction in Moore (“carrying out simple job
instructions” for “simple routine and repetitive work activity”). As in Moore, the ALJ here
neither limited Plaintiff to Level 1 reasoning jobs nor included limitations that would preclude
jobs requiring an ability to “carry out detailed but uninvolved written or oral instructions.”
Moreover, as in Moore, nothing in the record suggests that the vocational expert ignored the
reasoning limitations in the hypothetical when she identified potential jobs that an individual
with Plaintiff’s RFC could perform. Finally, the vocational expert testified that there were no

9

conflicts between the evidence she provided and the occupational information in the DOT. (Tr.
65, 66). Based on the above, the Court concludes that substantial evidence supported the ALJ’s
determination at step five of the sequential analysis.
B. Medical opinion evidence
Plaintiff argues that substantial evidence did not support the ALJ’s RFC determination
because the ALJ improperly assigned greater weight to the opinion of a state agency medical
consultant than the opinions of an examining physician and treating specialists.5 Defendant
counters that the ALJ properly considered the medical opinions, as well as other evidence in the
record as a whole, and provided good reasons for the weight she assigned the medical opinions.
RFC is “the most [a claimant] can still do despite” his or her physical or mental
limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant’s RFC, the
ALJ is required to consider the medical opinion evidence of record together with the other
relevant evidence. 20 C.F.R. §§ 404.1527(b), 416.927(b). Unless the ALJ assigns controlling
weight to a treating physician’s opinion, the ALJ must explain the weight given to every medical
opinion of record, regardless of its source. See 20 C.F.R. §§ 404.1527(c), (e)(2)(ii); 416.927(c),
(e)(2)(ii). When determining the appropriate amount of weight to give a medical opinion from a
non-treating source, the ALJ considers the following factors: examining relationship, treatment
relationship, supportability, consistency, and specialization. Wiese v. Astrue, 552 F.3d 728, 731
(8th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)). “The ALJ may reject the conclusions of any
medical expert, whether hired by the claimant or the government, if they are inconsistent with

5

Although Plaintiff faults the ALJ for assigning insufficient weigh to the medical opinion of his
“treating specialists,” he identifies only one specialist – Dr. Barron, the orthopedist whom
Plaintiff saw twice in July 2014. (ECF No. 18 at 12-14). Moreover, the record contains only Dr.
Barron’s treatment notes and no medical opinions regarding Plaintiff’s restrictions or ability to
perform work-related functions.
10

the record as a whole.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001)).
Because the ALJ weighs each medical opinion in light of the entire record, the Court will
summarize the relevant medical evidence. The records reflects that Plaintiff saw his primary
care physician, Dr. Ubaldo Rodriguez, on a monthly basis for check-ups and prescriptions refills
from September 2008 through May 2014, and that Plaintiff consistently complained of back
and/or neck pain and anxiety and/or depression. (Tr. 257-312, 396-413). In August 2011, Dr.
Rodriguez ordered lumbar x-rays, which revealed mild degenerative disc disease at L3-L4. (Tr.
314).
In November 2012, Plaintiff underwent a pulmonary function test at SSM St. Joseph
Hospital West. (Tr. 321-25). The study showed: “evidence of a mild obstructive defect with a
significant bronchodilator response. Lung volumes are normal. Diffusion studies are decreased
disproportionately at 43% of predicted. The FEV1 is 93% of predicted.” (Tr. 322).
On December 4, 2012, Dr. Dennis Velez performed a consultative physical examination
for Plaintiff. (Tr. 328-37). Plaintiff reported “ongoing difficulty breathing for at least ten years.”
(Tr. 328). Plaintiff admitted that he “used to be a heavy smoker and has made attempts to cut
back on his smoking,”6 and he stated that his inhalers help control his symptoms. (Id.). Plaintiff
also reported “ongoing back pain for at least ten years,” and stated that “he has to stop frequently
when he walks due to pain as well as shortness of breath.” (Id.). He also experienced “pain
down his legs at times, but denies that he has any weakness or loss of sensation.” (Id.). Plaintiff
denied “having had epidural injections, a trial of anti-inflammatories, bracing or surgical
intervention.” (Tr. 329).
6

Plaintiff later admitted that he smoked about half a pack of cigarettes per day and “has cut back
from three packs a day.” (Tr. 330).
11

At that time, Plaintiff was taking Prilosec, Advair, Pro-Air, alprazolam, and
hydrocodone. (Tr. 330). Dr. Velez observed that Plaintiff “appears to be in mild stress due to
shortness of breath as he sits up during the exam table [sic] and shows evidence of air hunger.
He has some cough during the examination.” (Tr. 331). The examination of Plaintiff’s lungs
revealed “[w]heezing throughout both inspiratory and expiratory phases,” “significant crackles at
the bases,” and “evidence of air hunger due to way that he was sitting, although he had no
evidence of cyanosis.” (Id.). Plaintiff had “slight hunched posture when he walks,” but “[f]ull
strength in both upper as well [as] lower extremities with only slight weakness of wrist extension
in the left side when compared with the right.”

(Tr.332). A joint examination revealed

“significant decreased range of motion as well as tenderness and crepitus in the left shoulder,”
“crepitus in both knees,” “tenderness to palpation on the lumbosacral spine and [] disturbed
rhythm on extension on the lumbar flexion and extension.” (Tr. 333). Dr. Velez concluded that
Plaintiff “would have limitations as far as walking more than [a] third of the time due to
significant shortness of breath. He would not have any limitations as far as sitting and standing
provided that he continues to take his inhalers. He would have limitations on lifting and carrying
above 80 degrees with his left shoulder . . . . [He] should not have any verbal or written
communications problems.” (Tr. 334). Dr. Velez diagnosed: possible COPD; “possible left
shoulder adhesive capsulitis vs. arthralgia”; and possible lumbar spondylosis. (Tr. 335).
X-rays of Plaintiff’s spine taken on February 1, 2013 revealed “[n]ormal examination of
the lumbar sacral spine.” (Tr. 352). Chest x-rays from March 13, 2013, showed pulmonary
hyperinflation and thoracic spondylosis, but were “[o]therwise unremarkable.” (Tr. 354).
State agency medical consultant, Dr. John Jung, reviewed Plaintiff’s medical records and
function report, and he completed an RFC assessment for Plaintiff on March 14, 2013. (Tr. 80-

12

83). Dr. Jung found that Plaintiff could: occasionally lift and/or carry twenty pounds; frequently
lift and/or carry ten pounds; stand/or walk about six hours in an eight-hour workday; sit about six
hours in an eight-hour workday; occasionally climb ramps, stairs, ladders, ropes, or scaffolds;
frequently balance, stoop, kneel, crouch, and crawl; perform limited reaching with the left arm;
and avoid exposure to extreme heat and cold, pulmonary irritants, and hazards. (Tr. 81-83). Dr.
Jung explained that the limitations he identified were “appropriate for the MDI’s of COPD, old
trauma to left shoulder and his shortness of breath.” (Tr. 99). Dr. Jung also discussed the results
of the pulmonary performance test, which “were not listing level but did show evidence of mild
obstructive defect with significant bronchodilator response,” and noted that Plaintiff “alleges
lung cancer in the past without treatment but there is no evidence of any lung cancer at this
time.” (Tr. 99).
Plaintiff underwent a series of x-rays on April 14, 2014. (Tr. 414-416). Images of
Plaintiff’s thoracic spine revealed “mild mid thoracic vertebral compressions”; “moderate
thoracic spondylosis”; and “no acute vertebral compressions.” (Tr. 414). X-rays of Plaintiff’s
lumbar and cervical spine showed “mild degenerative changes.” (Tr. 415, 416).
On July 11, 2014, about three weeks prior to the July 31, 2014 administrative hearing,
Plaintiff saw Dr. Mark Barron at the Missouri Orthopaedic Institute in Columbia, Missouri. (Tr.
417-19).

Plaintiff complained of low back and neck pain, which he rated as seven out of ten,

and he reported taking oxycodone three times per day. (Tr. 417). He also complained of
numbness in his right foot and lower leg, numbness in his right hand and arm, and “legs giving
out.” (Tr. 417). Dr. Barron’s physical examination of Plaintiff revealed: no acute distress,
difficulty with ambulation and balance, adequate lumbar range of motion, diffuse weakness
throughout his lower right extremity, decreased sensation in the dorsal part of his right foot, knee

13

pain on extension, and no pain with hip range of motion. (Tr. 418). Dr. Barron diagnosed: “low
back, cervical pain; right upper and lower extremity radiculopathy” and ordered MRIs of
Plaintiff’s cervical and lumbar spine. (Tr. 418-19).
On July 11, 2014, x-rays of Plaintiff’s cervical spine showed “mild spondylotic changes
at C5-C6,” and x-rays of his lumbar spine showed “mild facet arthrosis and early spondylotic
changes.” (Tr. 420, 421). MRIs of his cervical spine performed on July 25, 2014 revealed “no
acute findings” and “[t]race C5-C6 retrolithesis with mild narrowing of the respective neural
foramen.” (Tr. 422). A lumbar spine MRI showed “no disc bulge, spinal canal stenosis or
narrowing lateral recess” but there was “L4-5 and L5-S1 mild facet osteoarthritis.” (Tr. 424).
After reviewing the “[n]egative cervical and lumbar MRI[s],” Dr. Barron referred Plaintiff to a
neurologist and stated: “There is no surgical intervention recommended.” (Tr. 425).
1. Dr. Jung
Plaintiff argues that the ALJ provided insufficient explanation for her conclusion that Dr.
Jung’s opinion was “consistent with the objective evidence as a whole” because “the only
example given [by the ALJ] is a notation that the Plaintiff had ‘good response to inhalers.’”
(ECF No. 18 at 12). “[T]he opinions of nonexamining medical sources are generally given less
weight than those of examining sources.” Papesh v. Colvin, 786 F.3d 1126, 1133 (8th Cir. 2013)
(quoting Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010)). When evaluating a nonexamining source's opinion, the degree to which the opinion considers all of the pertinent
evidence in the claim must be considered.

Wildman, 596 F.3d at 967.

“The better an

explanation a source provides for an opinion, the more weight we will give that opinion.” 20
C.F.R. §§ 404.1527(d)(3), 416.927(d)(3).

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In her decision, the ALJ summarized the treatment notes, clinical observations, and
medical test results. In regard to the medical opinion evidence, the ALJ found that Dr. Jung’s
opinion was “well supported by a narrative explanation, which refers to the objective medical
evidence. In particular, it noted the claimant’s documented good response to inhalers, including
in a pulmonary function report.” (Tr. 24). The ALJ also found that Dr. Jung’s opinion was
“consistent with the medical evidence as a whole” and therefore assigned it “significant weight.”
(Tr. 24).
Here, the ALJ specifically cited the pulmonary function test as objective medical
evidence supporting Dr. Jung’s less restrictive opinion. (Tr. 24). Additionally, earlier in the
decision, the ALJ cited objective medical evidence supporting the RFC, including: normal
radiographs of Plaintiff’s lumbar spine taken in February 2013; chest x-rays taken on March 21,
2013, which “demonstrated pulmonary hyperinflation and mild spondylitic changes in the
thoracic spines” and “no other abnormalities”; and x-rays taken in April 2014, which showed
“mild degenerative changes with small osteophytles” in the cervical spine, “only mild
degenerative changes” in the lumbar spine, and “minimal anterior wedging at the T6, T7, and T8
vertebrae” and “[m]ild narrowing of several mid thoracic disc spaces” in the thoracic spine. (Tr.
22). The ALJ also cited x-rays and MRIs from July 2014, which showed “mild disc height loss
at C5-C6,” “mild spondylosis in the lumbar spine with mild retrolithesis at L3-L4, and no
evidence of nerve compression. (Tr. 23). See e.g., Steed v. Astrue, 524 F.3d 872, 875 (8th Cir.
2008) (“Even where [claimant’s] diagnostic tests showed actual disc herniation or bulging, the
diagnosis is tempered in several instances in the medical records by the words ‘mild’ or
‘minimal’ regarding either the herniation, or its effects.”). Based on the above, the Court finds
that the ALJ did not err in assigning Dr. Jung’s opinion significant weight.

15

2. Dr. Velez
Plaintiff also challenges the ALJ’s decision to assign Dr. Velez’s opinion partial weight.
(ECF No. 18 at 13-14). Plaintiff maintains that Dr. Velez’s opinion was entitled to greater
weight because it was based on a physical examination and was consistent with the observations
of Dr. Barron, the orthopedist that treated Plaintiff twice in 2014.
In her decision, the ALJ assigned “partial weight” to Dr. Velez’s medical opinion. (Id.).
The ALJ explained that Dr. Velez’s restrictions “are generally supported by his examination,”
but “the assessed restriction regarding the claimant’s ability to walk appears to be inconsistent
with the evidence in general, and the other restrictions assessed by Dr. Velez.” (Id.).
The only aspect of Dr. Velez’s opinion that the ALJ discredited was “the assessed
restriction regarding the claimant’s ability to walk[.]” (Tr. 24). The ALJ considered the walking
restriction “inconsistent with the evidence in general, and the other restrictions assessed by Dr.
Velez.” (Id.).

Although the ALJ did not specify what evidence contradicted Dr. Velez’s

walking restriction, she cited significant evidence that Plaintiff’s impairments were less limiting
than alleged. For example, the ALJ wrote: “[I]maging studies of the claimant’s cervical and
lumbar spine have revealed only minor degenerative changes with no evidence of nerve
compression. Surgery was explicitly not recommended, and there is no evidence that other
invasive treatment options, such as epidural steroid injections[,] have been considered or
recommended.” (Tr. 24). “[A]n appropriate finding of inconsistency with other evidence alone
is sufficient to discount the opinion.” Goff v. Barnhart, 421 F.3d 785, 790-91 (8th 2005).
The ALJ also noted that, while the pulmonary function testing conducted in November
2012 indicated “a mild obstructive defect and disproportionately decreased diffusion,” Plaintiff
“was noted to have a ‘dramatic response’ to bronchodilator treatment.” (Id.). “If an impairment

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can be controlled by treatment or medication, it cannot be considered disabling.” Hensley v.
Colvin, 829 F.3d 926, 933-34 (8th Cir. 2016) (quoting Brace v. Astrue, 578 F.3d 882, 885 (8th
Cir. 2009)).
In addition to the medical evidence, the ALJ noted that Plaintiff’s activities of daily
living, which included driving, shopping, cooking, sweeping, and attending his daughter’s school
events, suggested he was less restricted than he alleged. (Tr. 25). The ALJ may discount
opinions of physical limitations greater than Plaintiff exhibited in his daily life. See Turpin v.
Colvin, 750 F.3d 989, 994 (8th Cir. 2014) (ALJ properly discounted opinion where it conflicted
with the medical records, the testimony of a medical expert, and Plaintiff’s account of her daily
activities).
Importantly, the ALJ did not entirely discount Dr. Velez’s opinion, but rather assigned it
partial weight. Indeed, the ALJ’s RFC assessment, which limited him to light work and provided
additional exertional limitations, such as “occasionally climb ramps and stairs, but never climb
ladders, ropes, and scaffolds” and “occasionally reach overhead, in front, and laterally, with the
left upper extremity,” demonstrates that the ALJ did give some weight to this opinion evidence.
See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). Furthermore, the Court notes that Dr.
Velez did not limit Plaintiff to sedentary work. To the contrary, Dr. Velez stated that Plaintiff
“would not have any limitations as far as sitting and standing provided that he continues to use
his inhalers.”
Finally, Plaintiff argues that there “is little medical evidence in the record that supports
the ALJ’s conclusion that [he] can perform light work on a continuing basis,” and likens his case
to Lauer v. Apfel, 245 F.3d 700 (8th Cir. 2001). In Lauer, the United States Court of Appeals for
the Eighth Circuit reversed the denial of benefits because the record contained no medical

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evidence to support the ALJ's assessment of the degree to which the plaintiff's mental
impairments affected his RFC. Lauer, 245 F.3d at 706.

The instant case is distinguishable

because the record contained a significant amount of objective tests, clinical findings, and
opinion evidence that supported the ALJ’s RFC determination.
Upon review of the record and the ALJ’s decision, the Court finds that the ALJ evaluated
all of the evidence of record and provided good reasons for the weight he accorded Dr. Jung’s
and Dr. Velez’s opinions. Because substantial evidence on the record as a whole supports the
ALJ’s determination to assign significant weight to Dr. Jung’s opinion and partial weight to Dr.
Velez’s opinion, the Court will not disturb that determination.
IV.

Conclusion
For the reasons discussed above, the undersigned finds that substantial evidence in the

record as a whole supports the Commissioner’s decision that Plaintiff is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying Social
Security benefits to Plaintiff is AFFIRMED.
A separate judgment in accordance with this Memorandum and Order is entered this date.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 31st day of May, 2017

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